I. Introduction

The rules of State immunity are part of customary international law and one regional convention, the 1972 European Convention on State Immunity,2 which has at present eight parties3 and one signatory.4 The 1983 Inter-American Convention on the Jurisdictional Immunity of States5 has not entered into force. The controversial nature of certain aspects of State immunities is evidenced by the decades of efforts by the International Law Association,6 Institut de Droit International,7 and the United Nations' International Law Commission (hereafter 'ILC')8 to codify these rules.

We are now at the threshold of a universal convention on State immunity. The ILC's efforts culminated in the adoption on 9 November 2004, by the Sixth (Legal) Committee of the UN General Assembly, of the United Nations Convention on Jurisdictional Immunities of States and their Property ('the UN State Immunity Convention'). The General Assembly adopted the UN State Immunity Convention on 2 December 2004 and opened it for signature on 17 January 2005 for two years. The UN State Immunity Convention, which enjoys wide acceptance by States,9 will enter into force thirty days following the date of its thirtieth ratification.10

Set forth below are the provisions of the UN State Immunity Convention applicable to the intersection of State immunities and arbitration. Differences between the provisions of the UN Convention and existing immunity legislation and case law of France, Australia, the United States, the United Kingdom and Italy are noted. This paper will concentrate on the most controversial issues:

Is a State that has agreed to arbitrate nevertheless immune in proceedings to recognize and enforce an arbitral award rendered against it ('the recognition and enforcement issue')?

Is that State generally immune in supervisory proceedings or only if they relate to a commercial arbitration (the 'non-commercial arbitration question')?

Which domestic courts have the necessary jurisdictional nexus to exercise supervisory jurisdiction with respect to an arbitration involving a foreign State ('the jurisdictional nexus question')?

II. The UN State Immunity Convention

The basic provision of the UN State Immunity Convention dealing with arbitration, Article 17, states that: [Page71:]

If a State enters into an agreement in writing with a foreign natural or juridical person to submit to arbitration differences relating to a commercial transaction, that State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to:

(a) the validity, interpretation or application of the arbitration agreement;

(b) the arbitration procedure; or

(c) the confirmation or setting aside of the award,

unless the arbitration agreement otherwise provides.

The UN State Immunity Convention thus takes a position on each of the noted controversial issues, as follows:

A. The recognition and enforcement issue

A US company has obtained an award based on a breach of a joint venture contract against Hungary in an ICC arbitration in Paris and seeks recognition and enforcement of the award in the Paris Commercial Court. Hungary then invokes immunity. Does the Paris Commercial Court have jurisdiction to recognize and enforce the award against Hungary?

An agreement to arbitrate waives State immunity in proceedings to confirm and set aside an arbitral award,11 but does not affect a State's immunity from pre- and post-award measures of constraint, including execution. Unless a State has consented to the taking of pre-award measures by the express terms of its agreement to arbitrate, the terms of a written contract, a bi- or multilateral treaty, or a declaration before the court, the State remains immune from all pre-award measures of constraint.12 Post-award measures of constraint are similarly prohibited except that property 'specifically in use or intended for use by the State or State entity for other than government non-commercial purposes' in the forum State is generally not immune from execution.13

Article 17 is based upon the concept of implied consent to the supervisory jurisdiction of a court that is otherwise competent to determine questions connected with the arbitration agreement.14 While consent to arbitration is as such not a waiver of immunity from the jurisdiction of a court that would otherwise be competent to decide the dispute on the merits, a State's consent to commercial arbitration implies consent to all the 'natural and logical consequences of the commercial arbitration'.15 Article 17 respects the generally recognized principle that waiver of immunity from jurisdiction does not constitute a waiver of immunity from execution16 and thus does not include proceedings for the enforcement of an arbitral award.17 Thus, execution of an arbitral award or a judgment based thereon requires express consent thereto unless it is directed against earmarked property or property in use or intended for use by the State for other than government non-commercial purposes (Article 19).

Article 17 as adopted by the ILC in 1991 did not include recognition proceedings. The ILC was divided over the question whether the automatic waiver of a State's immunity from supervisory jurisdiction applies to recognition proceedings. Special Rapporteur Motoo Ogiso considered recognition proceedings as the 'final point' in the arbitration proceeding rather than the first step of the execution or 'the normal [Page72:] complement of the binding character of the arbitration agreement', and thus took the position that a State party to an arbitration agreement should not be immune in recognition proceedings.18 The ILC excluded recognition of an award from Article 17 because it was interpreted under many domestic civil-law procedures as the first step towards its execution.19 The UN State Immunity Convention, on the contrary, does not provide for immunity in proceedings for the recognition of an arbitral award, while requiring an explicit waiver for execution against non-commercial and non-earmarked property.

Under the UN State Immunity Convention the Paris Commercial Court, in the example, would thus have jurisdiction in a proceeding against Hungary to recognize the award and convert it into a judgment. In the absence of an express waiver of immunity from execution, the Paris Commercial Court would not, however, have jurisdiction over any proceeding against Hungary to enforce or execute the award against non-commercial and non-earmarked assets.

B. The non-commercial arbitration issue

Croatia revokes an investment authorization granted to a UK company. Croatia consented to submit disputes relating to the investment to ICC arbitration. The UK company then seeks to obtain an order compelling arbitration in the English High Court. Is Croatia immune before the English High Court?

A commercial transaction is defined to include, among other things, any contract for the sale of goods, the supply of services, for a loan or other transaction of a financial nature, or any other contract or transaction of a commercial, industrial, trading or professional nature, excepting only employment contracts.20 At the insistence of the United Kingdom, the Annex to the UN State Immunity Convention, which forms an integral part of the Convention, contains an 'Understanding' with respect to Article 17 stating that the expression 'commercial transaction' includes 'investment matters'. If a State submits differences not relating to a commercial transaction to arbitration, immunity from the national courts' supervisory jurisdiction still applies.

The ILC's draft convention on State immunity as provisionally adopted on first reading included two expressions 'commercial contract' and 'civil or commercial matter' in square brackets as alternative confines of the exception relating to an arbitration agreement.21 While some States commented that any limitation as to the scope of non-immunity for arbitration should be omitted or that the broader limitation 'civil or commercial matter' should be retained,22 the efforts to widen the scope of the arbitration exception apparently did not succeed. The ILC decided to limit non-immunity to arbitrations relating to 'commercial transactions'. It has been correctly pointed out that the underlying rationale for this restriction is not convincing.23 The arbitration exception to immunity is based on the State's consent. The nature of the claim involved should therefore not be decisive.

In the example, at first blush, it would appear that Croatia would be immune before the English High Court on the basis that the revocation of an investment authorization is not a commercial transaction. The UK company may argue, however, that a dispute concerning the revocation of an investment authorization is a commercial transaction [Page73:] as evidenced by the Understanding on Article 17 in the Annex to the UN State Immunity Convention.

C. The jurisdictional nexus issue

A French company brings an ICC arbitration claim in Vienna under an oil services contract governed by English law that results in an award against Pakistan. The French company then seeks to confirm the award in the US District Court Southern District of New York. Can Pakistan invoke immunity?

The UN State Immunity Convention submits the State that has agreed to arbitrate a commercial dispute to the supervisory jurisdiction of any court that is 'otherwise competent'. This expression refers to the competence of a court to exercise supervisory jurisdiction under the forum State's domestic law, including in particular its rules of private international law.24 Although there is no formal requirement of a nexus between the subject matter or place of the arbitration or the applicable law and the State exercising supervisory jurisdiction, domestic laws will generally not provide for supervisory jurisdiction over arbitrations other than those having a nexus with the forum State. The 1958 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards ('the New York Convention'),25 however, creates the necessary jurisdictional nexus to the forum State in every instance in which the New York Convention is applicable to the arbitral award. The principal exceptions would operate where the State party has not adhered to the New York Convention and the forum State has adhered, but only with a reciprocity requirement.

In the example, the French company would obtain jurisdiction over Pakistan in the Southern District of New York. One might think that the necessary jurisdictional nexus would not be supplied by the New York Convention because Pakistan has signed but not yet ratified the Convention and the United States has made a limiting declaration based on reciprocity.26 However, the relevant country for reciprocity purposes is not Pakistan, but Austria where the award was rendered, a country which is a party to the New York Convention, and thus the New York Convention does supply the relevant jurisdictional nexus and Pakistan's assertion of immunity would be unavailing.

III. The principal effects of the UN State Immunity Convention in certain jurisdictions

A. France

Like many civil law countries, France has not enacted State immunity legislation. French courts directly apply the customary international law rules of State immunity, including the rule that State property used for commercial purposes is generally not immune from execution.

French courts have drawn a strict distinction between recognition and execution of arbitral awards. They have considered the confirmation of an arbitral award as 'merely [Page74:] the necessary sequel to the award', and thus denied a foreign State's immunity in recognition proceedings.27

French courts were divided on the general principle of whether a State's agreement to arbitrate deprives it of immunity in proceedings for the enforcement of the arbitral award against non-commercial property. A leading line of cases stood for the proposition that an agreement to arbitrate does not in and of itself imply waiver of immunity from execution, which requires a separate manifestation of unequivocal intention to effect such a waiver.28 The Court of Appeal in Rouen in Société Bec Frères v. Office des Céréales de Tunisie opined that by submitting to ad hoc arbitration a Tunisian government department waived its immunity from execution.29 This conflict seems to have been laid to rest, at least in the context of an ICC arbitration clause, by the Court of Cassation's decision in Creighton v. Qatar.30 Where Qatar had expressly consented to arbitrate pursuant to ICC Rules of Arbitration, the Court held based on the language of Article 24 of the applicable 1988 Rules, which provided 'les parties s'engagent à executer sans délai la sentence à intervenir et renoncent à toutes voies de recours auxquelles elles peuvent renoncer',31 that there has been an implied waiver of the State's immunity from execution.32 Whether this decision would extend beyond an ICC arbitration agreement or other agreement incorporating rules with similar language is unclear. For example, it is not clear that the Court of Cassation would reach the same conclusion as the Court of Appeal in Rouen in the case of an ad hoc arbitration.

The entry into force of the UN State Immunity Convention for France would appear to call into question the Court of Cassation's holding in Creighton v. Qatar. The Convention requires that the State has expressly consented to the taking of 'post-judgment measures of constraint, such as attachment, arrest or execution, against property of a State'. Since the Court of Cassation reasoned that under Article 24(2) of the 1988 ICC Rules of Arbitration, Qatar impliedly waived immunity from execution, the requirement of an explicit waiver as to measures of execution, as opposed to an explicit agreement to arbitrate and to carry out the award, would not be met. The UN State Immunity Convention would certainly rule out of order the Rouen Court of Appeal's dictum inferring a waiver of immunity from execution solely from an agreement to arbitrate ad hoc.

B. Australia

Like many common law countries, Australia has enacted State immunity legislation. Under Article 17(2) of the Australian Foreign States Immunities Act 1985,33 where the foreign State is not immune in a proceeding concerning a transaction or event and 'the foreign State is a party to an agreement to submit to arbitration a dispute about the transaction or event, then, subject to any inconsistent provision in the agreement, the foreign State is not immune in a proceeding concerning the recognition as binding for any purpose, or for the enforcement, of an award made pursuant to the arbitration, wherever the award was made'. Thus, unless the arbitration agreement entered into by a State expressly makes an exception for enforcement, under the Australian Foreign States Immunities Act, an agreement to arbitrate has the effect of waiving immunity, even with respect to non-commercial property of the State.

With respect to the recognition and enforcement issue, the ratification of or accession to the UN State Immunity Convention by Australia would require Australia to change [Page75:] Article 17 of the Foreign States Immunities Act to the extent that an arbitration clause by itself would waive State immunity with respect to non-commercial property.

With respect to the non-commercial arbitration issue, Article 17 of the Foreign States Immunities Act does not limit the exercise of supervisory jurisdiction to commercial transactions. It authorizes the Australian courts to exercise such jurisdiction relating to all proceedings in which the State is not immune. Application of the UN State Immunity Convention would require the Australian courts to limit the exercise of supervisory jurisdiction to commercial transactions as defined in the Convention.

With respect to the jurisdictional nexus issue, under the Australian Foreign States Immunities Act, the Australian courts' jurisdiction with respect to recognition and enforcement extends to an arbitral award wherever it was made. As a practical matter, there would be no difference in this respect between the present statutory regime and the regime that would pertain if Australia adhered to the UN State Immunity Convention because Australia is a party to the New York Convention, without a limiting reciprocity declaration, which thus provides the necessary jurisdictional nexus under the UN State Immunity Convention.

C. United States of America

In 1988, Congress amended the Foreign Sovereign Immunities Act ('FSIA')34 to codify the scope of immunity in proceedings to enforce an agreement by a foreign State to submit to arbitration, or to confirm an arbitral award pursuant to such an agreement to arbitrate,35 and with respect to enforcement of a judgment based on an order confirming an arbitral award.36

With respect to the recognition and enforcement issue, § 1610(a)(6) of the FSIA is on its face much broader than the provisions of the UN State Immunity Convention because it permits execution on any property of the State without an express waiver by the State. This provision is saved, however, by the overarching requirement of § 1610(a) that to be not immune from execution, the property in the United States of the foreign State must be 'used for a commercial activity in the United States'. Since the UN State Immunity Convention contains in Article 19(c) a parallel exception to immunity for property other than that used by the State for government non-commercial purposes, the provisions of the FSIA appear to be consistent with the analogous provisions of the UN State Immunity Convention.

With respect to the non-commercial arbitration issue, § 1605(a)(6), which governs actions to enforce an agreement made by the foreign State with a private party to submit to arbitration and to confirm an award made pursuant to such an agreement to arbitrate, contains no requirement that the dispute relate to a commercial transaction. Thus, if the United States were to adhere to the UN State Immunity Convention, it would have to restrict its supervisory jurisdiction to agreements to arbitrate commercial transactions.

With respect to the jurisdictional nexus issue, § 1605(a)(6) does contain a requirement of a jurisdictional nexus between the arbitration and the United States. A sufficient basis for a jurisdictional nexus set forth in § 1605(a)(6)(B) is that 'the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement [Page76:] of arbitral awards', which would invoke the New York Convention and the 1975 Inter-American Convention on International Commercial Arbitration ('the Inter-American Convention').37 The jurisdictional nexus requirement will be met in essentially all cases with respect to arbitrations to be conducted in all States other than those that are not parties to either the New York Convention or the Inter-American Convention.38 One might think that this independent basis for jurisdiction extends beyond commercial transactions. The United States made a declaration pursuant to Article 1(3) of the New York Convention excluding awards in non-commercial disputes,39 and the Inter-American Convention by its terms applies only to differences that arise with respect to commercial transactions. Except for the differences in the definition of what is considered a commercial transaction, the jurisdictional nexus based on conventions in force for the United States harmonizes in most cases with the commercial transaction requirement of the UN State Immunity Convention.

Subsection 1605(a)(6)(A) providing for a sufficient jurisdictional nexus where the arbitration takes place or is intended to take place in the United States does not contain any limitation on the type of transaction, commercial or otherwise. Thus, in order to harmonize with the UN State Immunity Convention, § 1605(a)(6)(A) would have to be narrowed, either by judicial interpretation40 or by legislative amendment, to commercial transactions.

D. United Kingdom

Under the UK State Immunity Act 1978, '[w]here a State has agreed in writing to submit a dispute which has arisen, or may arise, to arbitration, the State is not immune as respects proceedings in the courts of the United Kingdom which relate to the arbitration'.41 This formulation raises each of the three issues as topics for discussion.

With respect to the recognition and enforcement issue, the question is whether proceedings 'which relate to the arbitration' include recognition and enforcement proceedings. Commentators suggesting that this phrase should be interpreted broadly point to the legislative history, in particular to the omission of an exception that was included in the bill until its passage by Parliament for 'proceedings for the enforcement of an award'.42 Seemingly quite separately, section 13(2) provides that the property of a State is generally not subject to any process for the enforcement of an arbitral award unless the State has given express written consent or the property is 'for the time being in use or intended for use for commercial purposes'.43 The commentators on section 9 do not seem to interpret the limitation contained in section 13(2) as narrowing the broad language in section 9.44 Thus, current UK law appears to be inconsistent with Article 17 of the UN State Immunity Convention, and would have to be narrowed to the specific types of proceedings in that Article in order to conform if the United Kingdom were to ratify the Convention.

With respect to the non-commercial arbitration issue, section 9 is not by its terms limited to commercial transactions. Thus, again, UK law appears to be inconsistent with Article 17 of the UN State Immunity Convention and would have to be narrowed.

With respect to the jurisdictional nexus issue, there appears to be no requirement under UK law that the arbitration have any connection with the United Kingdom. [Page77:] Nevertheless, since the United Kingdom and virtually all States in which an arbitration might be conducted are States parties to the New York Convention, and the Convention provides the jurisdictional nexus for supervisory jurisdiction, it is unlikely as a practical matter that the UK statute will confer jurisdiction in violation of the UN State Immunity Convention. Nevertheless, as a formal matter, the UK statute would extend jurisdiction to an award issued in States such as Kenya, Liechtenstein or Iraq, which are not presently parties to the New York Convention.

E. Italy

Like other civil law jurisdictions, Italy has not enacted State immunity legislation. Pursuant to Article 10 of the Italian Constitution, customary international law is part of Italian law, including the customary law rules of State immunity.

There is essentially no published Italian case law dealing with the arbitration exception to State immunity. As Norway stated in the Sixth Committee of the General Assembly, the UN State Immunity Convention will therefore 'constitute a major achievement providing States and their courts with legal certainty'.45 A large number of States other than Italy and Norway will similarly benefit from the codification of the rules of State immunity.

IV. ICSID Arbitration

The Convention on the Settlement of Investment Disputes between States and Nationals of Other States ('the ICSID Convention') establishes a self-contained system of review of arbitral awards that excludes review proceedings before domestic courts. Moreover, the exclusive remedy rule in Article 26 generally excludes intervention by domestic courts during the arbitration proceeding. While the ICSID Convention, in Article 53, provides for the finality and binding force of the award, in terms similar to other instruments on international arbitration, including the ICC Rules of Arbitration, it also contains, in Article 54, provisions for the recognition and enforcement of foreign arbitral awards, which are independent from the New York Convention and other international and domestic rules concerning the recognition and enforcement of foreign arbitral awards. Article 54 requires each contracting party to recognize an award as binding and to enforce a pecuniary award within its territory as if it were a final judgment. Article 55 of the ICSID Convention expressly confirms that the rules on State immunity from execution are unaffected.

The ILC's Commentary on Article 17 of the UN State Immunity Convention concludes from the exclusive and self-contained nature of ICSID arbitration that submission to ICSID arbitration 'can in no circumstances be interpreted as a waiver of immunity from jurisdiction of a court which is otherwise competent to exercise supervisory jurisdiction in connection with a commercial arbitration, such as an International Chamber of Commerce arbitration or an arbitration under the aegis of the American Arbitration Association'.46

Because Article 55 of the ICSID Convention specifically preserves immunity from execution, submission of a dispute to ICSID arbitration cannot be interpreted as a [Page78:] waiver of immunity from execution. There may be lingering questions, however, whether consent to ICSID arbitration may be considered by some national courts as an implied waiver in recognition proceedings. For example, the French Court of Cassation in the case Société Ouest Africaine des Bétons Industriels (SOABI) v. Senegal47 followed the traditional French distinction that an exequatur does not itself constitute an act of execution of such a nature as to provoke the immunity from execution of the State and thus upheld the Tribunal de grande instance of Paris' order of exequatur48The ILC Commentary, however, is correct in directing that a State that is a party to an ICSID arbitration has submitted itself to an independent, international regime, and has not thereby consented to the domestic court's supervisory jurisdiction.49

V. Conclusion

A practitioner might ask whether as a practical matter the terms of the arbitration exception to State immunity in the UN State Immunity Convention can be cited to national courts prior to its entry into force. The answer is alluded to in the preamble to the UN State Immunity Convention.

A party in national litigation that wishes to rely on the arbitration exception as set forth therein may contend that the UN State Immunity Convention, including the arbitration exception, as an expression of the current consensus of the community States, reflects existing customary international law. Indeed, since there is little case law in many countries articulating the arbitration exception, this argument will have practical appeal. On the other hand, the preamble states that the terms of the UN State Immunity Convention 'would contribute to the codification and development of international law and the harmonization of practice in this area'. Thus, the UN State Immunity Convention expressly leaves room for the argument that a particular provision of the Convention does not reflect existing customary international law.

1
The authors gratefully acknowledge the assistance of colleagues in the New York, Paris, Rome and Frankfurt offices of Cleary, Gottlieb, Steen & Hamilton.

2
European Treaty Series 74.

3
Austria, Belgium, Cyprus, Germany, Luxembourg, Netherlands, Switzerland and United Kingdom.

4
Portugal.

5
(1983) 22 I.L.M. 292ff. The draft convention was adopted by the Inter-American Juridical Committee on 21 January 1983.

6
'Buenos Aires Revised Draft Articles for a Convention on State Immunity of the International Law Association', International Law Association, Report of the Sixty-Sixth Conference held at Buenos Aires 14 to 20 August 1994.

7
'Contemporary Problems Concerning the Immunity of States in Relation to Questions of Jurisdiction and Enforcement', Institut de Droit International, Session of Basel 1991, <www.idi-iil.org/idiE/resolutionsE/1991_bal_03_en.PDF> (this and all following URLs valid December 2004).

8
'Draft Articles on Jurisdictional Immunities of States and Their Property', Yearbook of the International Law Commission 1991, vol. II, Part 2 at 21, < www.un.org/law/ilc/texts/jimmfra.htm>.

9
See 'Statements on Convention on Jurisdictional Immunities' in Completion of Draft Text on Jurisdictional Immunities Welcomed by Legal Committee; Climax of Effort begun in 1977, Sixth Committee of the General Assembly, Press Release GA/L/3259, 25 October 2004, < www.un.org/News/Press/docs/2004/gal3259.doc.htm>.

10
Article 30, UN State Immunity Convention.

11
Article 17, UN State Immunity Convention. A very recent example of a case upholding this principle is the decision of the Canadian Federal Court of 23 December 2003 in TMR Energy Ltd. v. Ukraine, 2003 FC 1517. The Court sustained the seizure of a cargo aircraft at Goose Bay, Newfoundland, to enforce an arbitral award against Ukraine on the basis that a State party to an arbitration agreement providing for arbitration in a country signatory to the 1958 New York Convention without reserving its jurisdictional immunity, impliedly waives its immunity in relation to the recognition of the award.

12
Article 18, UN State Immunity Convention.

13
Article 19, UN State Immunity Convention.

14
Report of the International Law Commission on the work of its thirty-eighth session, UN Doc A/41/10, Yearbook of the International Law Commission 1986, vol. II, Part 2 at 63.

15
ibid. at 64.

16
Article 20, UN State Immunity Convention makes this explicit.

17
Seventh report on jurisdictional immunities of States and their property by Mr Sompong Sucharitkul, Yearbook of the International Law Commission 1985, vol. II, Part 1 at 26.

18
Second report on jurisdictional immunities of States and their property by Mr Motoo Ogiso, UN Doc A/CN.4/422 and Add.1, Yearbook of the International Law Commission 1989, vol. II, Part 1 at 71.

19
Report of the International Law Commission on the work of its forty-second session, UN Doc A/45/10, Yearbook of the International Law Commission 1990, vol. II, Part 2 at 39.

20
Article 2(1)(c), UN State Immunity Convention.

21
Yearbook of the International Law Commission 1986, vol. II Part 2 at 63.

22
See the comments of the United Kingdom, Australia and the five Nordic countries, Yearbook of the International Law Commission 1988, vol. II, Part 1 at 96.

23
C. Schreuer, State Immunity: Some Recent Developments (Cambridge: Grotius, 1988) at 69.

24
Report of the International Law Commission on the work of its forty-third session, UN Doc. A/C.4/SER.A/1991/Add.1 (Part 2), Yearbook of the International Law Commission 1991, vol. II, Part 2 at 54.

25
330 United Nations Treaty Series 38.

26
Article 1(3) of the New York Convention.

27
See e.g. Socialist Federal Republic of Yugoslavia v. Société européenne d'etudes et d'entreprises, Trib. gr. inst. Paris, 6 July 1970, (1971) 98 J.D.I. 131; Benvenuti & Bonfant SARL v. Government of the People's Republic of Congo, Court of Appeal of Paris, 26 June 1981, (1981) 108 J.D.I. 843.

28
See e.g. Islamic Republic of Iran et al. v. Eurodif, Paris Court of Appeal, 21 April 1982, (1983) 72 Rev. cr. dr. internat. privé 101.

29
Société Bec Frères v. Office des Céréales de Tunisie, Rouen Court of Appeal, 20 June 1996, [1997] Rev. arb. 263.

30
Société Creighton v. Ministère des Finances de l'Etat du Qatar, Cass. civ. 1re, 6 July 2000, Bull. civ. 2000.I.135, No. 207

31
The official English version of the same clause reads: 'the parties shall be deemed to have undertaken to carry out the resulting award without delay and to have waived their right to any form of appeal insofar as such waiver can validly be made.'

32
'Qu'en statuant ainsi, alors que l'engagement pris par l'Etat signataire de la clause d'arbitrage d'exécuter la sentence dans les termes de l'article 24 du règlement d'arbitrage de la Chambre de commerce internationale impliquait renonciation de cet Etat à l'immunité d'exécution, la cour d'appel a violé les principes et texte susvisés.'

33
Act No. 196 of 1985, (1986) 25 I.L.M. 716.

34
28 U.S.C. §§ 1602-1611.

35
28 U.S.C. § 1605(a)(6).

36
28 U.S.C. § 1610(a)(6).

37
O.A.S. Treaty Series No. 42; (1975) 14 I.L.M. 336.

38
The United States has made a declaration pursuant to Article 1(3) of the New York Convention and a reservation to the Inter-American Convention limiting its obligation to recognize and enforce foreign arbitral awards to awards made in the territory of another Contracting State.

39
The text of the declaration is as follows: 'State will apply the Convention only to differences arising out of legal relationships whether contractual or not which are considered as commercial under the national law.'

40
While there is no direct reference to 'commercial' subject matter in § 1605(a)(6)(A) of the FSIA, the initial paragraph of § 1605(a)(6) states that the provision applies to subject matter 'capable of settlement by arbitration under the laws of the United States'. One approach to determining what is 'capable of settlement by arbitration' under US law is to make reference to the Federal Arbitration Act, 9 U.S.C.A., which on its face covers arbitration provisions in a 'maritime transaction or a contract evidencing a transaction involving commerce'. A US court could reconcile the UN State Immunity Convention provision with § 1605(a)(6)(A) of the FSIA by interpreting 9 U.S.C.A. as imposing a requirement of commercial subject matter.

41
Section 9(1), UK State Immunity Act 1978.

42
Hansard, HL (5th series), vol. 389, cols. 1516-1517 (16 March 1978). H. Fox, The Law of State Immunity (Oxford University Press, 2002) at 270; J. Crawford, 'International Law and Foreign Sovereigns: Distinguishing Immune Transactions' (1984) 44 British Yearbook of International Law 113.

43
Against States parties to the European Convention on State Immunity the commercial property exception does not apply unless, among other things, the process is to enforce an arbitral award.

44
H. Fox, supra note 42 at 270; J. Crawford, supra note 42 at 113.

45
Press Release GA/L/3259, supra note 9.

46
Yearbook of the International Law Commission 1991, vol. II, Part 2 at 55.

47
Société Ouest Africaine des Bétons Industriels (SOABI) v. Senegal, Cass. civ. 1re, 11 June 1991, (1999) 113 International Law Reports 440.

48
See also Benvenuti & Bonfant SARL v. Government of the People's Republic of Congo, Paris Court of Appeal, 26 June 1981, (1981) 108 J.D.I. 843, confirming an exequatur obtained against the Congo from the Tribunal de grande instance de Paris, and holding that an order of exequatur does not constitute a measure of execution but is preliminary thereto and that the courts, acting on a request for recognition and enforcement, would be exceeding their jurisdiction by becoming involved in the subsequent execution phase, to which the question of immunity from execution relates (Article 55).

49
But compare C. Schreuer, supra note 23 at 90ff.